Ivanisevic v N & T Building Pty Limited [2024] NSWSC 380

Ivanisevic v N & T Building Pty Limited [2024] NSWSC 380

The third defendants failed to demonstrate, on the evidence, that the plaintiff knew or ought to have known of relevant facts establishing the third defendants' fault more than three years prior to service of the amended statement of claim. There was no sufficient evidence the plaintiff had legal advice to join the third defendants before 6 February 2020, so this was not a clear case for strike out or summary disposal due to limitation. The cause of action was not shown to be plainly outside the limitation period on the interlocutory application, and the application must be dismissed.

Jurisdiction
Australia
Judgment Date
15 April 2024
Procedural Posture
Procedural Ruling Interlocutory Motion / Interlocutory Determination of Strike Out/summary Judgment Application
Outcome
Application dismissed
Legal Topics
['summary Disposal' 'striking Out Pleadings' 'limitation Periods' 'discoverability (personal Injury)' 'negligence']
['limitation of Actions' 'civil Procedure' 'personal Injury'] ['summary Disposal' 'striking Out Pleadings' 'limitation Periods' 'discoverability (personal Injury)' 'negligence']

Case Brief

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Procedural Posture

Procedural Ruling Interlocutory Motion / Interlocutory Determination of Strike Out/summary Judgment Application

Legal Issues

  1. 1 ["Whether the cause of action against the third defendants was 'statute barred' under ss 50C and 50D of the Limitation Act 1969 (NSW) and thus discloses no reasonable cause of action for summary disposal or strike out" 'Whether the plaintiff knew or ought to have known the injury was caused by the fault of the third defendants more than three years before the claim was brought against them' 'Whether, in interlocutory proceedings, a limitation defence may clearly bar an action such that pleadings may be struck out or dismissed under the Uniform Civil Procedure Rules 2005 (NSW) rr 13.4(1)(b) or 14.28(1)(a)']

Ratio Decidendi

The third defendants failed to demonstrate, on the evidence, that the plaintiff knew or ought to have known of relevant facts establishing the third defendants' fault more than three years prior to service of the amended statement of claim. There was no sufficient evidence the plaintiff had legal advice to join the third defendants before 6 February 2020, so this was not a clear case for strike out or summary disposal due to limitation. The cause of action was not shown to be plainly outside the limitation period on the interlocutory application, and the application must be dismissed.

Court Disposition

Application dismissed

Orders

  • ["The third defendants' notice of motion dated 27 June 2023 is dismissed." 'Costs of the application to be costs in the cause.']